MacKinnon Estate v. MacKinnon, (2010) 260 O.A.C. 32 (CA)

• Judge: Doherty, Moldaver and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 03, 2009
• Jurisdiction: Ontario
• Citations: (2010), 260 O.A.C. 32 (CA);2010 ONCA 170

MacKinnon Estate v. MacKinnon (2010), 260 O.A.C. 32 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. MR.044

Hubert MacKinnon and Hubert Routley Duncan MacKinnon Executor and Trustee of the Estate of Fanny Elizabeth MacKinnon, also known as Frances Elizabeth MacKinnon (applicants/appellants) v. Charles Douglas Barry MacKinnon and Robert Warren MacKinnon (respondents/respondents)

(C50866; 2010 ONCA 170)

Indexed As: MacKinnon Estate v. MacKinnon

Ontario Court of Appeal

Doherty, Moldaver and Epstein, JJ.A.

March 9, 2010.

Summary:

Hubert MacKinnon, in his personal capacity and as the executor of his mother's estate, applied for a declaration that either he or the estate was the owner by prescription of a certain property. In the alternative, he sought compensation for the value by which he and his father had improved the land.

The Ontario Superior Court, in a decision reported [2009] O.T.C. Uned. 868, dismissed the application (i.e., the possessory title claim). In a subsequent decision, the court dealt with the alternative claim and awarded Hubert $1,000 and $17,000 to the estate of his late father (the unjust enrichment claim). Hubert MacKinnon appealed both orders. The respondents (Hubert's two brothers) cross-appealed from the unjust enrichment award.

The Ontario Court of Appeal dismissed the appeal respecting the possessory title claim, but for reasons that differed from the court below. The court also dismissed the appeal and cross-appeal respecting the unjust enrichment claim.

Landlord and Tenant - Topic 5

Tenant and licensee distinguished - The Ontario Court of Appeal distinguished between a tenancy and a licensee situation and discussed the preferred approach to determining what circumstances gave rise to a tenancy at will for purposes of supporting a possessory claim to title under s. 5(7) of the Real Property Limitations Act - See paragraphs 49 to 76 - The court, per Moldaver, J.A., stated that there was "... no reason why persons who have been permitted to occupy land pursuant to a family arrangement motivated by natural affection and generosity should be able to turn around years later and repay their benefactor with a claim for possessory title ... As a matter of policy, I see no reason why the path to acquiring possessory title should be made easy in such circumstances; on the contrary, I believe it should be made difficult. In the context of a claim for possessory title involving s. 5(7) of the Act, this can be achieved by looking carefully at the intention of the parties and the circumstances surrounding the occupation and requiring clear evidence upon which a court can be satisfied, on balance, that a tenancy at will was truly created. Strict adherence to the burden of proof should be demanded" - See paragraphs 75 and 76.

Landlord and Tenant - Topic 5

Tenant and licensee distinguished - Two sisters arranged for their brother, Duke, to build two homes on their property at their expense, one for them and one for Duke and his wife, Fanny, to live in - Duke paid no rent or taxes, but maintained the properties and chauffeured his sisters in return for a small monthly stipend from 1972 to 1983 - Duke died in 1983 - One of Duke and Fanny's sons, Hubert, moved in with Fanny - He maintained the property, but paid no rent or taxes - In 1986, the sisters conveyed the farm to Duke and Fanny's other sons (Charles and Warren) for $2 and natural love and affection, retaining a life interest and getting a promise that Fanny could remain in the second home until she died - Hubert and his mother lived in the house together until 2006, when Fanny moved because of illness - Fanny died in April 2008, naming Hubert as her executor, trustee and sole beneficiary - In May 2008, Charles and Warren asked Hubert to leave the property but he refused - Hubert applied for a declaration that he or Fanny's estate had acquired possessory title as tenants at will (Real Property Limitations Act, s. 5(7)) - The Ontario Court of Appeal held that Duke and Fanny were not tenants at will, but occupied the property as licensees - This was a family arrangement whereby Duke was allowed to enjoy sole occupation of the property in fact, but he was not given a right of exclusive possession in law, as was the case while Fanny occupied the property after Duke's death - Therefore, s. 5(7) of the Act did not come into play and Hubert's claim for possessory title was dismissed - See paragraphs 4 to 86.

Landlord and Tenant - Topic 1076

Classes of tenancies - Tenancy at will - Defined - [See both Landlord and Tenant - Topic 5 ].

Limitation of Actions - Topic 4069

Recovery of land - Commencement of limitation period - Tenant at will - [See both Landlord and Tenant - Topic 5 ].

Real Property - Topic 5993

Title - Extinguishment, prescription and adverse possession - Landlord and tenant - Creation of tenancy at will - Exclusive possession - [See both Landlord and Tenant - Topic 5 ].

Real Property - Topic 5995

Title - Extinguishment, prescription and adverse possession - Landlord and tenant - Tenancy at will - Acquisition of title - [See both Landlord and Tenant - Topic 5 ].

Restitution - Topic 62

Unjust enrichment - General - What constitutes - Two sisters arranged for their brother, Duke, to build two homes on their property at their expense, one for them and one for Duke and his wife, Fanny, to live in - Duke paid no rent or taxes, but maintained the properties and assisted his sisters from 1972 to 1983 - Duke died in 1983 - One of Duke and Fanny's sons, Hubert, moved in with Fanny - He maintained the property, but paid no rent or taxes - In 1986, the sisters conveyed the farm to Duke and Fanny's other sons (Charles and Warren) - Hubert and his mother lived in the house together until 2006, when Fanny moved because of illness - Fanny died in April 2008, naming Hubert as her executor, trustee and sole beneficiary - In May 2008, Charles and Warren asked Hubert to leave the property - Hubert claimed damages for unjust enrichment for improvements he and Duke made to the property - An applications judge awarded Hubert $1,000 and his father's estate $17,000, representing the increased value of the property attributable to outbuildings built by Duke in 1972 and a shed built by Hubert - The judge rejected the unjust enrichment claim as it related to Duke's labour as he lived in the house for free and received the stipend for assisting his sisters - Hubert appealed and Charles and Warren cross-appealed - The Ontario Court of Appeal dismissed the appeals - See paragraphs 87 to 101.

Cases Noticed:

Masidon Investments Ltd. et al. v. Ham (1984), 2 O.A.C. 147; 45 O.R.(2d) 563 (C.A.), refd to. [para. 24].

Keefer v. Arilotta (1976), 13 O.R.(2d) 680 (C.A.), refd to. [para. 24].

Train v. Metzger (1974), 5 O.R.(2d) 540 (H.C.), refd to. [para. 26].

Horne v. Grant, [2003] O.T.C. 154; 2003 CanLII 44731 (Sup. Ct.), refd to. [para. 26].

Ocean Harvesters Ltd. v. Quinlan Brothers Ltd., [1975] 1 S.C.R. 684; 1 N.R. 527; 5 Nfld. & P.E.I.R. 541, refd to. [para. 34].

Radaich v. Smith (1959), 101 C.L.R. 209 (Aust. H.C.), refd to. [para. 41].

Street v. Mountford, [1985] 2 All E.R. 289; 61 N.R. 202 (H.L.), refd to. [para. 47].

Errington v. Errington, [1952] 1 All E.R. 149 (C.A.), refd to. [para. 47].

Heslop v. Burns, [1974] 1 W.L.R. 1241 (C.A.), refd to. [para. 56].

Cobb v. Lane, [1952] 1 All E.R. 1199; [1952] 1 T.L.R. 1037 (C.A.), refd to. [para. 56].

Facchini v. Bryson, [1952] 1 T.L.R. 1386 (C.A.), refd to. [para. 56].

Booker v. Palmer, [1942] 2 All E.R. 674 (C.A.), refd to. [para. 62].

Lehr v. St. Mary River Irrigation District, [1993] A.J. No. 1411 (Q.B.), refd to. [para. 85].

Statutes Noticed:

Limitations Act, R.S.O. 1990, c. L-15, sect. 4 [para. 33]; sect. 5(7), sect. 15 [para. 32].

Counsel:

Daniel, J.,Wyjad, for the appellants;

Tom Serafimovski, for the respondents.

This appeal was heard on December 3, 2009, before Doherty, Moldaver and Epstein, JJ.A., of the Ontario Court of Appeal. The following decision was released for the court by Moldaver, J.A., on March 9, 2010.